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SCV PANEL QUICKLY VOIDS INJUNCTION

[Posted January 2, 2013] I’m still piecing together the story of Perez v. Dietz Development, LLC, but what I have thus far is dazzling enough.

Last week, a panel of Supreme Court justices addressed a temporary-injunction order that had been entered just three weeks earlier. The underlying suit was filed up in the State of Northern Virginia, where all sorts of unusual things seem to happen with regularity. A dissatisfied customer of a home-remodeling company posted negative reviews on Yelp and Angie’s List. She mentioned that the contractor had done sloppy work, had damaged the home it was supposed to renovate, and even sued for nonpayment after the homeowner kicked it off the job. (That suit died when the contractor failed to filed the ordered bill of particulars.) She also mentioned that she discovered that some of her jewelry was missing, and that the contractor had the only extra key.

The contractor sued for damages and for an injunction against what it felt were defamatory comments on the website. A substitute judge convened an injunction hearing and expressed skepticism of the accuracy of some of the comments. Specifically, he felt that the homeowner had incorrectly stated that she had received summary judgment in the collection action because the case “had no merit.” He also seemed to resent the unproven implication that the contractor or his employees may have made off with some jewelry.

At the conclusion of the hearing, his honor ruled that he wouldn’t enjoin any criticism of the quality of the work. But he did order the homeowner to “remove any post that refers to the ‘loss of jewelry,’” and to modify her post about the summary judgment, to eliminate the comment about lack of merit.

When I first learned of this order, I’ll admit that my first reaction was along the lines of, “Oh, no, you didn’t!” What the judge imposed is called prior restraint, and unless the Visigoths are marching down the National Mall toward the U.S. Capitol Building, you can’t do that. That’s First Amendment 101.

Because this order imposed a temporary injunction, the homeowner had a right to petition the Supreme Court for expedited review under Code §8.01-626. She enlisted the help of the ACLU and the Public Citizen Litigation Group, folks who emphatically know their First Amendment jurisprudence, and filed a petition for review within the statutory 15 days, on December 26. (The 15th day was a day on which the clerk’s offices were closed; the 26th was the first day they reopened after Christmas.)

§8.01-626 specifies that the petition is submitted to “a justice of the Supreme Court,” and authorizes that justice (not the full court) to act upon it. Actually, that’s not quite the way these things are handled; the petition was presented to a panel of three justices for consideration, as has been the court’s practice for years. I wish I could have been a fly on the wall during the justices’ conference (more likely a conference call, since the justices probably considered the matter from their respective chambers, which are hundreds of miles apart), because two days after the petition was filed, and without even asking the contractor for a response, the court entered an unpublished order swatting the injunction aside. I figure the discussion of the merits must have taken a good, solid thirty-five seconds.

There are some very interesting angles in this. I’ve seen the homeowner’s petition for review, and predictably, it includes a compelling discussion of First Amendment caselaw. But the Supreme Court’s brief order doesn’t mention the amendment, or freedom of speech. Instead, it vacates the injunction because the trial court’s order didn’t provide a date for its expiration, as is plainly required in Code §8.01-624. (Nor did it call for, or waive, an injunction bond, as mandated in Code §8.01-631. No temporary injunction can take effect until a bond is posted, no matter how forcefully the judge hands down his ruling.) The short order also notes that “the preliminary injunction was not justified and . . . the respondents have an adequate remedy at law.”

In one sense, there’s nothing surprising about this approach; the court almost always declines to address constitutional issues if a given dispute can be decided on statutory grounds. See, e.g., Johnson v. Woodard, 281 Va. 403 (2011), a blatant First Amendment violation that the justices reversed for noncompliance with the sanctions statute, without taking up the constitutional challenge. So what’s noteworthy about this latest instance of painting with the thinnest brush possible? In her well-reasoned petition, the homeowner didn’t mention the lack-of-duration problem. The justices came up with the issue sua sponte, and decided it immediately on that basis.

And quite correctly, I’ll hasten to add; there can be no justification in American law for curbing speech in an effort to protect the reputation of a company. My primary surprise is that the justices brushed aside any consideration of their own contemporaneous-objection rule, in order to reach a defect that wasn’t briefed and, to my knowledge, wasn’t preserved below.

In case any of you out there are thinking that this might signal an easing of the court’s strict adherence to Rule 5:25, please be disabused now: It won’t work in your next appeal of an inadequate record.

The subject of this proceeding suggests two additional topics: The unstated (at least in Virginia courts) standards for granting temporary injunctions, and the availability of a petition for immediate review of a temporary injunction, but not of a permanent one. I’ll take up those topics in another post in a few days.